1. This appeal is filed by the Plaintiffs 1 and 3 to 5 in O. S. No. 17 of 1956 on the file of the District Court of East Thanjavur at Nagapattinam. There is a long anterior history of litigation between the principal contestants. Since the scope of the appeal is limited to a few points in controversy, we will refer to the prior history of the litigation, only to the extent it is necessary for the disposal of the appeal.
2. The suit properties belonged to one Jainambu Nachial whose only daughter was Sabia Ammal. Both these ladies died of a sudden attack of Cholera on 3-6-1926. It is now beyond dispute that the mother died first and the daughter died afterwards. Jainambu Nachial, before her death, on 19-2-1926, executed a settlement deed in favour of her daughter Sabia giving her the properties mentioned in Schedules A to A-3 and B to B-2 of the Plaint. On Sabia's death, the properties settled on her devolved upon her husband Mohamed Ismail Rowther, the first defendant in the suit, as well as her paternal uncle Mohamed Ali, each taking a half share. On the death of Jainambu a half share in the plaint C and D schedules was taken by her brother Sheik Mohamed Rowther, who is the husband of the first plaintiff in the suit Sabura Ammal. The other half share of Jainambu, on her death, devolved on her daughter Sabia and, on the latter's death, that share devolved in moieties on the first defendant and Mohamed Ali.
Mohammed Ali conveyed his half share in all the properties thus acquired by him by succession, to Noor Mohammed, son of the first plaintiff. This Noor Mohamed died subsequently and his heirs are his mother, who is the first plaintiff and his brothers and sisters plaintiffs 2 to 4. The second plaintiff died pending the suit, and his widow was impleaded as the fifth plaintiff. On the basis of the above allegations, the Plaintiffs claimed one half share in Sabia's properties (A to A-3 and B to B-2 of the plaint schedule) and a three-fourth share in Jainambu's properties (those mentioned in C and D Schedules), whereas the remaining share belonged to the first defendant. On various dates within 12 years prior to suit, the first defendant sold some of the properties to several alienees, who are defendants 2 to 25 in the suit. The first defendant died pendente lite, and defendants 26 to 31 were brought on record as his legal representatives.
The plaintiffs claimed that they and the contesting first defendant owned the properties as co-owners, and the suit was brought for partition and separate possession of the plaintiffs' share mentioned above. In equity, the properties alienated by the first defendant to the alienees might be allotted to the first defendant on alienating co-sharer. There was also a prayer for directing accounts to be taken of the income from the properties from the date of the plaint.
3. In the lower Court, except defendants 1 and 16, the other defendants remained ex parte. The first defendant, the main contesting defendant, pleaded that Sabia's father Mohammed Nooruddin spent a great deal of time in the Isles, which term appears to refer to Borneo, Sarawak and other islands in Indonesia. There he married under Muhammadan Law; a local lady, Masma and had a son Yousuff by her. This Yousuff is alive. The first defendant contended that under the Muhammadan Law, it was Yousuff who would succeed Sabia on her death and not her paternal uncle Mohamed Ali. This Yousuff is her consanguine brother and therefore, should succeed to the properties and not Mohamed Ali. The first defendant also pleaded that, in any event, his possession was adverse for over the statutory period to the plaintiff, and he has acquired prescriptive title. On the above pleadings he contended that the suit was to be dismissed. The sixteenth defendant claimed that he was an unnecessary party to the suit.
4. The learned District Judge, after an elaborate trial, found that there was no satisfactory evidence to prove the existence of Yousuf, the alleged consanguine brother of Sabia, and that therefore, it would follow that Mohammed Ali as heir, was entitled to succeed her along with her husband. We hold on a full consideration of the evidence that this finding is correct. Learned Counsel for the respondents was also not able to displace this finding in the course of his argument. But the learned District Judge found that, notwithstanding the conveyance by Mohammed Ali of his share of the suit properties to Noor Mohammed on 5-1-1932 by a sale deed the original of Ex. B-36, the possession of the first defendant must be considered as adverse for over the statutory period and that therefore, the first defendant acquired title to the suit properties. The plaintiffs' suit was dismissed with costs of defendants 25 to 31, the legal representatives of the first defendant who died pendente lite.
5. Learned Counsel appearing for the plaintiff-appellants before us contended that, in view of the finding of the Lower Court that Yousuff's position as the consanguine brother of Sabia has not been established, it would follow that Mohammed Ali became her co-heir along with her husband the first defendant, each entitled to a specified undivided share in the suit properties. Learned Counsel for the appellant relied upon the legal principle which has particular relevance to Muhammadan Law, that the possession of a coheir or co-sharer must be presumed to be that of the other co-sharer and the onus lies on the co-sharer who claims to have perfected title by adverse possession to establish his claim. The learned District Judge, in paragraph 26 of the judgment, has referred to a notice Ex. B-37 which Mohammed Ali sent to the first defendant immediately after the sale on 5-1-1932, informing him of his sale to Noor Mohammed. To this notice, the first defendant sent a reply notice Ex. B-38 to Mohammed Ali. But this was returned unserved. At or about the same time, the first defendant sent a notice Ex. B-40 dated 24-1-1932 to Noor Mohammed and the postal acknowledgment Ex. B-41 shows that Noor Mohammed received it. The learned District Judge found that the notice which the first defendant thus gave both to Mohammed Ali and Noor Mohammed amounts to unequivocal repudiation of the co-sharers' title firstly of Mohammed Ali and after him of Noor Mohammed. According to the learned District Judge, the possession of the first defendant after such repudiation must be treated as adverse to the plaintiffs. He also referred to the fact that the first defendant was able to prove that patta for the lands had been transferred to him and kist receipts and house-tax receipts are all in his favour tending to show that his possession for over that statutory period was on the whole properties and was open, hostile and adverse to the plaintiffs.
6. In view of the fact that the above finding is the sole finding now under attack in this appeal, the scope of the appeal is very much narrowed down. The issue is a short one; whether the transactions covered by the exchange of the notices above mentioned in 1932 between the first defendant on the one hand and Mohammed AH and Noor Mohammed on the other, closely following the sale of one half share by Mohammed All to Noor Mohammed amount to a clear and unequivocal notice by the first defendant to the plaintiffs that he is claiming title adverse to them over the whole properties and which would enable the commencement of adverse possession in favour of the first defendant, from the date of the above said notices. This is what Mohammed Ali wrote to the first defendant in Ex. B-37 on 6-1-1932:--
"I have executed a deed of absolute sale of the share etc., belonging to me in the property of Sabia Bivi Ammal, of Thittacheri, on 8th of the current month in favour of Noor Mohammed Rowther, son of Sheik Mohammed Rowther, residing in the said Thittacheri. Therefore, you shall besides paying the entire income from the aforesaid property should also hand over the said property to the aforesaid person. I have informed you of this particular."
The reply of the first defendant to this notice is Ex. B-40 and it reads thus:--
"It is learned that one Mohammed Ali Sahib, son of Kader Mastan Sahib, residing at Mappillai Kuppam has sold to you on the 5th of this Month (a share) stating that he is heir to my wife Sabiya Bivi and he got the share by virtue of his being an heir to her. I make it known through this notice that in the circumstances when Mohammed Yusuf, son of my wife's father, late Mohammed Noordin Sahib, and also a brother of my wife, Sabiya Bivi Ammal, is alive the aforesaid Mohammed Ali Sahib is prevented from making any claims according to Mohammedan Law, and the deed obtained by you is, therefore, not valid."
7. It appears to us that in the circumstances of the case, it is not proper to consider the exchange of these notices alone, dissociated from the entire background of the conduct of the first defendant visa-vis Mohammed Ali and Noor Mohammed at the above period and also vis-a-vis Noor Mohammed's heirs in the subsequent period. Plaintiffs 1, 3 and 4 filed a suit O. S. No. 24 of 1928 against Mohanmmed Ismail Rowther (first defendant herein) and other defendants in the Sub Court, Nagapattinam for partition and recovery of their share of the properties, which are the same as the present suit properties. They wanted the settlement deed by Jainambu to Sabia declared invalid and their title as heirs of Jainambu declared under the Mohammedan Law. The plaintiffs alleged that on the death of Jainambu her brother Sheik Mohammed Rowther became the heir and that on the death of Sheik Mohammed Rowther his wife Sabura Ammal and her children became the heirs. During the pendency of the above suit. Mohammed Ali was added as a supplemental defendant, on his own petition. But he did not file any written statement. There was no issue framed by the trial Court about the claim of this supplemental defendant. The trial Court found that the settlement deed of Jainambu was not a valid one and decreed the plaintiff's suit for partition and separate possession as between the plaintiffs and the first defendant The first defendant appealed to the District Judge of Nagapattinam and the judgment in the appeal, A. S. No. 244 of 1929, dated 5-9-1930 is Ex. B-58. The appeal memo filed by the first defendant is Ex. A-2. In paragraph 29 of the Grounds of Appeal, the first defendant stated:--
"The extent of shares given in para 33 of the judgment Is wrong and plaintiffs or defendants 2 and 3 are not entitled to any share at all and the 1st defendant is entitled to one half of the properties and Mohamed Ali the supplemental 6th defendant is entitled to the other half though not Mohamed Yusuff the consanguine brother of Sabia Bivi'" (italics (here in ` ') ours)."
In paragraph 36 the first defendant contended:--
"The lower Court should have held on issue 7 that the suit is bad for nonjoinder of Sabia's consanguine brother Mohamed Esuf, Jainambu's other consanguine brothers and sisters and also Sheik Mohammed's other wives and their children by them."
No doubt there Is a contradiction between the averments in paragraph 29 and the averments in paragraph 36. If paragraph 29 is to be accepted as correct, it would appear that the first defendant, when he filed the above grounds of appeal through his advocate in the District Court at Nagapattinam on 29-10-1929 was admitting the right of Mohammed Ali as co-sharer of Sabia along with him and denying the right of Yousuf. In paragraph 36 he was merely asserting the position of Yousuff as a consanguine brother and a necessary party but without realising that this assertion about his being a consanguine brother would prevent Mohammed Ali from claiming the right as a preferential heir of Sabia Ammal.
The Judgment of the learned District Judge in the above appeal is filed in this case as Ex B-58. In the judgment, the appellate Court found that the settlement of Jainambu was a valid one reversing the finding of the trial Court in that respect. Finally, the conclusion of the appellate Judge is given in paragraph 16 oil the appellate Judgment:
"As a result of the above findings, it follows that the property exclusively be- longs to Sabia whose heirs, on her death, were the 1st defendant, her husband (present first defendant) and the supplemental 6th defendant (Mohammed Ali Sahib)." It would appear that the plaintiffs in that suit took up the matter in second appeal to the High Court, and the High Court dismissed the second appeal. The judgment in the second appeal is not produced. But in the course of his evidence (the first defendant was examined on Commission) the first defendant said:
"Against that decision, the plaintiffs preferred a second appeal in the High Court. The High Court confirmed the decree of the First Appellate Court four or five years later. It was during the pendency of that second appeal that Noor Mohammed got the original of Ex. B-36. I did not instruct my Vakil when the 1st appeal grounds were drafted to include as one of the grounds that Mohammed Ali had a share. Even before that I have been contending that Mohammed Ali was not an heir and that he is not entitled to a share."
The above admission of the first defendant would show that the earlier proceedings were pending when the notices were exchanged in 1932. During that period, notwithstanding the disclaimer of the first defendant in the course of his evidence as mentioned above, he had taken and maintained the stand that he and Mohammed Ali were the sole heirs of Sabia Ammal each entitled to one half-share in Sabia's properties. He was prepared to give support to this position, even at the time when the second appeal was pending in the High Court up to 1934, or 1935.
But, at a particular point of time, when he found that Mohammed Ali whom he was prepared to support at one stage had transferred his share to Noor Mohammed under Ex. B-36 in 1932, he denied the title of Mohammed Ali to make the conveyance, and the title of Noor Mohammed under the conveyance from Mohammed Ali. Earlier in the course of his deposition in this suit, he gave evidence about the circumstances of the sale by Mohammed Ali to Noor Mohammed of one half share in his wife's properties during the pendency of the appeal from O. S. No. 24 of 1928. He also referred to a statement given by him during the Patta transfer enquiry by the Tahsildar. In this statement Ex. B-43 dated 13-2-1932, Mohammed Ismail Rowther stated thus:--
"In the Memo of Grounds also in the Appeal filed by me in the District Court, it was stated that 6th defendant and the minor Mohammed Yusuff were the heirs. As it could not be proved that the minor was alive, it was held in the Appeal that the 6th defendant was the heir. Mohammed Ali Sahib who was the 6th defendant, except for the filing of an affidavit in the Sub Court, praying that he may be added as an heir, did not take any other steps in the case. He was also not present at the time of the hearing of the appeal in the District Court. As it could not be proved that the minor son was alive, it was decided in the Appeal to add 6th defendant as heir. I shall prove that the boy is alive ............ Though it was held in the District Court Appeal that the 6th defendant was the heir, as the minor Mohammed Yusuff is alive, it cannot be stated that the 6th defendant is the heir." The Tahsildar granted patta to the first defendant observing that the village Officers had learnt that, the 'neither the person who sold the property found in the deed of agreement, nor the person who purchased it has any right of enjoyment in the properties, it is held that it is not necessary to take any action in respect of patta transfer affair.'
8. The first defendant was further cross-examined about his equivocal attitude during the appeal in A. S. No. 244 of 1929, and with particular reference to his statement in the grounds of appeal. This is what he stated:
"I have no records with me to show that there was such a son (as Yousuff) to my father-in-law. Mohammed Ali junior paternal uncle of my wife got himself impleaded as a supplemental defendant in that suit. I have even then opposed his being impleaded as a party on the ground that there was a nearer heir Esuff at Sibu. I made no application to implead Esuff as a party. I nave got to search to find out whether a copy of my counter by which I have opposed the impleading of Mohammed Ali is available with me. Subia Ammal and others also objected to impleading him as a party. I do not remember whether in my appeal grounds against the decision of the Sub Court, Nagapattinam in O. S. No. 24 of 1928 I have stated that the lower Court should have stated that in Sabia's properties, I am entitled to one half and Mohamed Ali is entitled to the other half ............ On the other hand, his case was that he was entitled to only one-sixth share. The District Court did not decide that myself and Mohammed Ali were each entitled to a half share. But the Court held that myself and Mohammed Ali alone were the heirs of Sabia. The plaintiffs took the decision of the District Court in Appeal to the High Court. I do not remember whether I raised any objection in the High Court that the decision of the District Court that Mohammed Ali also was an heir to Sabia was erroneous. Mohammed Ali conveyed his share in the properties of Sabia even some years before the appeal in the High Court was disposed of."
9. There are ample grounds to hold from a perusal of the above evidence that the assertion made by the first defendant denying the title of Mohammed AH in 1932 when the notices were exchanged, was not an equivocal assertion of hostile title in himself to the whole property. First of all, he did not claim in that notice title to the entire properties, He conceded that he had only a share, the other share belonging to another heir of Sabia, whether it be Yousuff or Mohammed Ali. Secondly, even his denial of Mohammed Ali's title was equivocal. It is clear from the admission of the first defendant that Mohammed Ali except to file an affidavit for being added as a party, did not file any written statement in the suit and did not do anything to make out his title. Obviously the plaintiffs were not interested in setting up any title in Mohammed AH. The first defendant says that they had opposed Mohammed Ali being added as a party. Though the first defendant in his deposition stated that he too filed a counter opposing the impleading of Mohammed Ali, he was unable to file a copy of the counter.
It is, therefore, legitimate to infer that at the appellate stage, for the purpose of gaining his own ends in the appeal, the first defendant actively supported the claim of Mohammed Ali in order to get a decision in favour of himself and Mohammed Ali and non-suiting the plaintiffs. Such a decision was given by the appellate Court. During the stage of the further second appeal also, it would appear that the first defendant did not object to the right which the appellate Court recognised in Mohammed Ali to a share. When questioned on this point, the first defendant stated that he did not remember whether he raised any objection in the High Court in regard to this. Therefore, at the second appellate stage, the first defendant must be presumed to have supported the position of Mohammed Ali as a co-heir in preference to Yousuff. It was only during the pendency of the second appeal in the High Court, on finding that Mohammed Ali had made a conveyance to Noor Mohammed, Noor Mohammed being the son of Subura Ammal, the party who opposed the first defendant in the prior litigation, that the first defendant decided to reverse his stand by refuting both Mohammed Ali, and Noor Mohammed's title. This would clearly show that at the relevant period when the notice was issued, both before and after the notice the first defendant was taking conflicting positions for the purpose of securing a tactical advantage in the litigation between himself and Subura Ammal. Therefore, the denial of the title of Mohammed Ali and of Noor Mohammed by the first defendant in the notices sent at that period, cannot be construed as an unequivocal declaration of a title in himself to the exclusion of the co-sharers.
The learned District Judge has dismissed this conflict in the attitude of the first defendant by a laconic observation:--
"What exactly the 1st defendant meant by this hide and seek is not clear."
But the lower Court has failed to notice! that a party who sets up a hostile title| to the exclusion of co-heirs must be definite and equivocal in his assertions. But when the assertions are in the nature of "hide and seek", that is to say mutually contradictory and merely intended for the purpose of taking a tactical advantage out of a litigious situation, it cannot be considered as an assertion of a hostile title adequate for the purpose of becoming the starting point in the acquisition of title by adverse possession against co-sharers.
10. We will refer briefly at this stage to the law on the point, as explained in the decisions cited at the Bar. In Laksmi Reddy v. Lakshmi Reddy, , the Supreme Court observed at page 202 thus:
"There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pilial v. Jeeyarathnammal, AIR 1919 PC 44 quotes with approval, a passage from Culley y. Deod Taylerson, (1840) 3 P & D, 539 which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur'. (See also Govind Rao v. Raja Bai, AIR 1931 PC 48). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
This Court in Md. Kaliba Rowther v. Md. Abdullah Rowther, observed thus:--
"It is only when acts are clearly proved on the part of the co-sharer in possession which would be inconsistent with any other co-sharer being entitled to any possession or interest in any part of the property, it can be said that any question of ouster of the co-sharers not in possession can arise. In the absence of such ouster there will be no room for adverse possession or prescription in favour of the cosharer in possession."
As to the alieness from a co-sharer especially when the co-sharer is a Mohammedan, this is what the Bench observed:
"Neither on principle nor on authority can an alienee from a co-sharer more especially when he is a Mohammedan, be regarded as standing on a special footing differently from the position of his allenor. It is clear that what the co-sharer conveyed to his alienee in his right, title and Interest in a his share which will take with it also the right to sue for partition and recover separate possession of such share. If the co-sharer who was the alienor is not barred by time because for over 12 years he took no action either to share possession of the property or income therefrom or sue for partition there is no principle why his alienee should be placed on a different footing. In the absence of the defendant establishing ouster of the plaintiff, the defendant's plea that the suit was barred by limitation cannot be accepted."
We wish to note in particular the observation that the assertion of a co-sharer in possession for a hostile title should be such as would be Inconsistent with any other co-sharer being entitled to possession. It would thus be clear that the co-sharer in possession may not admit title of a particular co-sharer, because in his view the real co-sharer Is somebody else, and not the co-sharer who puts forward his title. In such circumstances, the co-sharer claiming adverse title must be considered as not having put forward his title to the whole property, excluding the title of any other co-sharer he should be considered as only expressing his doubt about the title of a particular co-sharer who claims such title but he has not gone further and set up title exclusively En himself to the whole property. In the present case, in the prior notices of 1932 the first defendant did not set up title exclusively in himself. He conceded the title of Yousuf but without conceding the title of Mohammed All, At one time in the litigation at the same period as the notice, he conceded the title of Mohammed Ali for his own tactical advantage, at another time he disowned It, when he found that Mohammed All took advantage of his concession to make a conveyance of his share to the party who was opposed to the first defendant in the prior litigation. In Salhun v. Malku, AIR 1931 Lah 439, the Lahore High Court observed:--
"Where one of the co-heirs enters into possession claiming to do so in the character of a sole and exclusive heir, he cannot be deemed to be in adverse possession, because, such a statement Is vague and indefinite and does not contain any assertion of a hostile title which in law would amount to ouster. Nothing short of ouster or something equivalent to ouster can make such claimant's possession adverse."
Natesan, J., In Ameer Bibi v. Chinnammal, after
reviewing the authorities observed:--
"The nature of possession by one co-owner to become adverse and bar the lights of the other co-owners must be such that one can Infer from It an intention by such person in possession to keep out the others in assertion of an exclusive and hostile title in himself to the property."
This is consistent, If we may say so with respect, with our view stated above that the co-owner's assertion of a hostile title must be one exclusively for himself in the property.
It will not suffice If he claims for himself only a co-owner's right, and for the time being expresses his doubt as to who Is the person properly entitled to the rights in the remaining share or shares in the property. In such circumstance the co-owner who is really entitled to the remaining share or shares even though he may be able to establish his title only in subsequent proceedings of rival claimants to the title can claim relief of partition as against the co-sharer who had disputed his title earlier, but who at the same time had not asserted title in himself exclusively to the whole of the property. The latter case does not claim a title by adverse possession, because of such assertion alone.
11. There are alienations made by both" the plaintiffs and the first defendant to various persons who claim to have obtained possession of the property. But those alienations, as found by the lower Court, are all within 12 years prior to suit. They cannot be used as adequate evidence for proving ouster or adverse possession for over 12 years by the first defendant, This position is not disputed by the appellant at the time of the hearing of the appeal before us. The properties alienated by the respective parties will be allotted to their shares as far as possible in the final decree proceedings.
12. Consequently, we are of the opinion that the appeal has to be allowed. The decree of the lower Court is set aside. The plaintiffs will be given a decree for partition and separate possession as prayed for. The legal representatives of the first defendant will be directed to render accounts to the plaintiffs of the income from the property, which will be determined in the enquiry for mesne profits to be separately conducted for the purpose. The appellants will be entitled to the costs of this appeal from the contesting respondents. Costs in the lower Court will come out of the estate. The appeal as against respondent 30 abates.